202 P. 476 | Cal. Ct. App. | 1921
Appeal from the judgment and from an order denying defendant's motion for a new trial.
[1] The information is in two counts. The first count charges that on or about the twenty-third day of December, 1920, the defendant unlawfully, feloniously, and burglariously entered a certain dwelling-house in the city of Taft, with the intention then and there to commit the crime of larceny. The second count charges a similar entry of the same house on or about the first day of January, 1921. The verdict of the jury, without particular designation of either count, found the defendant guilty of burglary in the first degree. The judgment, after reciting that the defendant was duly convicted of "the crime of felony, to wit, burglary in two counts," ordered that the defendant be punished by imprisonment in the state prison of the state of California "for an indeterminate period for the crime of burglary in the first degree."
Appellant contends that the verdict is defective in this, that it cannot be ascertained therefrom upon which of the counts the jury rendered its verdict, and that this is prejudicial to him for the reason that the verdict cannot possibly *651 be supported on the second count. Appellant claims — and in this we agree with him — that there is no evidence to show that the burglary charged in the second count was committed in the night-time. This being so, a verdict convicting the defendant of the crime of burglary in the first degree, as charged in the second count, could not be justified by the evidence.
We are of the opinion that the verdict as rendered was a verdict of guilty on both counts. Under section
[2] On this state of the record, and in view of the judgment as entered, the defendant has not been prejudiced by reason of the insufficiency of the evidence to sustain the verdict on the second count, if he was convicted upon sufficient evidence relating to the first count. Section
[3] Appellant further contends that the evidence is insufficient to sustain the verdict against him on the first count. There is no direct evidence of his presence at the house in question at the time, nor until more than a month after the time, when the alleged burglary was committed. There is evidence that at a subsequent time certain articles stolen from that house were found in his possession. He invokes the rule that the mere possession of stolen property by a defendant is not sufficient evidence upon which to justify an inference of guilt, and that there must be other circumstances besides the unexplained possession of such property to justify a verdict of guilty, of burglary. (People v. Boxer,
We are forced to the conclusion that, aside from defendant's possession of the stolen property at a date more than two months after that property appears to have been stolen, there is no evidence tending to prove defendant's guilt of the crime of burglary as charged in the first count of the information. The fact that the defendant had been the husband of Mrs. Countess, and the fact that more than a month after the date of the alleged burglary he had placed under her door and in her automobile documents of an unexplained nature, and was found loitering about the home of Mr. and Mrs. Countess on the second day of March, are not circumstances tending to prove that at any time during the preceding December he was guilty of burglary of that house, either for the purpose of committing larceny or at all. Such evidence tends to create a suspicion that the defendant had a disposition to annoy his former wife, and was likely to arouse prejudice against him in the minds of the jurors. Of this he would not be entitled to complain if at the same time the evidence had any connection with the commission of the crime charged against him, but the facts thus shown are wholly unrelated to that crime. Aside from the bare fact of the possession of the stolen property at the time stated, there is absolutely no evidence that at or about the time of the commission of the burglary, or at any time prior thereto, the defendant ever was present in the house where the burglary was committed, or in that vicinity. We conclude that the evidence is insufficient to sustain the verdict against the defendant on the first count.
The judgment is reversed.
Shaw, J., and James, J., concurred. *654